Award No. 5042 Docket N®. 5842
2-DT&I-CM '70SYSTEM FEDERATION No. 16,
RAILWAY EMPLOYES' DEPARTMENT, A.F.L.-C.I.O.
(CARMEN)
EMPLOYES' STATEMENT OF FACTS: The Detroit, Toledo and Ironton Railroad Company, hereinafter referred to as the carrier, maintains a wrecking outfit at Flat Rock, Michigan and Carman Robert D. Pinkston, hereinafter referred to as the claimant, owns a regular assignment by bid on the wrecking crew, and is recognized as one of the regular assigned wrecking crew members.
His regular assignment on the flat rock repair track is from 7:30 A.M. to 4:00 P.M. Monday through Friday.
The regular assigned wrecking crew members were called, except for claimant, and performed wrecking services with the outfit, outside of the yard limits from the hours of 8:00 A.M. to 6:00 P.M. on April 5th, 1968. The carrier refused to call the claimant for the above wrecking services, on the basis that it was his birthday and carrier was required to give him the day off under provisions of article Il, section 6 (a) of the November 21, 1964 agreement which is controlling over the current agreement, revised September 1, 1949, as evidenced by carrier's letter of denial, dated October 29, 1968.
This dispute has been handled with the carrier, up to and including the highest designated officers of the carrier authorized to handle same, with the result that they have declined to adjust it.
The above rule only provides for the payment at the time and one-half rate if service is performed on legal holidays. It does not in any way require that employees will work holidays as the employees contend. Carrier states that if that was intended, the rule would state that employees must work holidays and such reasoning is completely contradictory to the express intent and purpose which provides payment for employees on holidays.
The board's attention is also directed to the facts that the carrier cannot anticipate when the wreck crew will be used and that Mr. PFinkston's wrecking assignment position was not filled by another employee.
In support of their contention, the employees have based their position on rule 70, which covers assignment to wrecking crews, on the premise that it controls or supersedes the holiday rule and agreements, as amended. Carrier submits that it has conclusively shown that such contention is erroneous and without foundation or merit for the reasons stated herein and therefore requests that the board so determine.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claimant bases his claim on the alleged violation of Rule 70 of the Agreement by Carrier when it failed to call him for wrecking service on April 5, 1968. Carrier' defense to this claim is that Claimant wasn't called because his birthday occurred on the date in question and therefore Carrier was compelled to give him the day off under the requirement of Article II, Section
Rule 70, captioned "Wrecking Crews", the pertinent parts thereof provide as follows:
Article II, Section 6(g) of the November 21, 1964 Agreement provides as follows:
Claimant is contending that Rule 70(b) clearly without exception states that the regular assigned crew will accompany the wrecking outfit and inasmuch as it is undisputed that Claimant was a regular assigned member of the wrecking crew, then it was mandatory upon Carrier to have called him for such wrecking duty in this instance.
Claimant further contends that under Article II, Section 6(g) of the November 21, 1964 Agreement, it has been the practice as well as the rule to call the regularly assigned wrecking crew members to work on all holidays, and therefore Claimant had a demand right to be called and work on his birthday-holiday.
Carrier's position is that Section 6(a) of Article II of the November 21, 1964 Agreement intends that employes shall be given their birthday-holiday off with pay and that there is no provision requiring an einploye to work on such holiday; that Rule 5 governing Rest Day and Holiday Service does not in any way require that employes must work holidays as the employes contend; that Section 6(a) of Article II of the November 21, 1964 Agreement supersedes Rule 70 insofar as the use of a regularly assigned employe on a Birthday-Holiday is concerned; that Claimant failed to prove that by past practice regular assigned wrecking crew members work on all holidays.
Inasmuch as Rule 70 clearly provides that the regular assigned crew will accompany the wrecking outfit and it being undisputed that Claimant was a regularly assigned wrecking crew member, therefore under Section 6(g) of Article II of the November 21, 1964 Agreement Claimant was entitled to work on his birthday-holiday.